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Accident Benefits: The Five-Year Deadline for Treatment IS NOT an Absolute Deadline

Updated: 4 days ago

Individuals injured in a motor vehicle accident may advance a claim for accident benefits against their own insurance company.


The Statutory Accident Benefits Schedule classifies an individual’s injuries as minor, non-catastrophic, and catastrophic. For accidents after June 1, 2016, the following benefits and deadlines will apply:  


Individuals Over the Age of 18 at the Date of the Accident

Injury Type

Amount of Maximum Benefits Available

Expiration Date

Minor

3,500

5 years from the accident

Non-Catastrophic

65,000

5 years from the accident

Catastrophic

1,000,000

No Expiration Date

(To understand what types of injuries fall within the minor, non-catastrophic, or catastrophic categories, please see Hillier & Hillier’s article: “A Guide to Your Accident Benefits Clams.” Please note, the above chart does not apply to claimants with optional benefits).

 

Individuals Under the Age of 18 at the Date of the Accident

Injury Type

Amount of Maximum Benefits Available

Expiration Date

Minor

3,500

28th Birthday

Non-Catastrophic

65,000

28th Birthday

Catastrophic

1,000,000

No Expiration Date


Benefits for medical and rehabilitation treatment are payable by the AB insurer if the treatment is reasonable and necessary to an insured's recovery.


Must Expenses be Incurred within the Applicable Deadlines?


Section 20 of the Statutory Accident Benefits Schedule states that no medical, rehabilitation, or attendant care benefits are payable for expenses incurred after these deadlines (ie… 5 years from the date of the accident or after a claimant’s 28th birthday if the claimant was under 18 at the time of the accident).


Section 3(7) of the Schedule defines an expense as being “incurred” if the insured has received the goods or services to which the expense relates OR the insured has paid the expense, has promised to pay the expense, or is otherwise legally obligated to pay the expense.


Taken literally, the Schedule would produce unfair and questionable results. A literal interpretation would preclude a person from receiving benefits for a treatment plan that was fully approved simply because they did not complete the plan before the applicable deadline (5 years or 28th birthday). In other words, insurers would be relieved of their obligation to pay for approved treatment plans which they have determined to be reasonable and necessary for their insured's recovery simply because the passage of a deadline.


Also, individuals in need of treatment near the five-year mark would be required to incur, out of pocket, expenses for denied treatment plans and subsequently file a LAT application and hope that the Licence Appeal Tribunal agrees that the treatment is reasonable and necessary. Otherwise, they will not be reimbursed for the treatment by the Accident Benefits insurer. Finally, this interpretation would allow insurers to tactically deny treatment plans when the claim is nearing the five-year mark regardless of the reasonableness and necessity of such a plan to an insured's recovery. After all, claimants will most likely be unable or unwilling to incur treatment expenses out of pocket before the five-year mark and then bring a successful LAT application to overturn the denial and recover the expenses.


Fortunately, recent decisions from the License Appeal Tribunal have eradicated the above interpretation and results.


Benefits May Still Be Payable After the 5-Year Deadline For Treatment Plans Submitted Before the 5-Year Deadline


A recent decision, Han v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-014475, has provided relief to claimants who still need treatment and are approaching the 5-year (or 28th birthday) deadline.


Vice-Chair, D. Flude, dismissed a preliminary issue motion by Wawanesa Insurance Company. The claimant was in an accident on August 8, 2016. Wawanesa dismissed a treatment plan for a physiatry assessment, which was submitted on December 4, 2019 and the claimant did not incur the cost of the assessment before the five-year deadline (August 8, 2021). On November 24, 2021, after the five-year deadline, the claimant filed an application to dispute the denial and requested that the Licence Appeal Tribunal find the assessment reasonable and necessary and be funded by Wawanesa.


Wawanesa raised a preliminary issue and requested that the application be dismissed. Wawanesa relied on section 20 of the Statutory Accident Benefit Schedule and argued that since the assessment expense had not been incurred within the five-year deadline, which elapsed on August 8, 2021, the expense would not be payable even if the Licence Appeal Tribunal found it reasonable and necessary.


Vice-Chair, D. Flude, rejected Wawanesa’s argument and held that a treatment plan that was submitted and denied by an insurer and not incurred by a claimant prior to the five-year deadline, may still be payable if the Tribunal subsequently found the treatment to be reasonable and necessary. The Vice Chair reasoned that the date of the denial was December 4, 2019, and the issue for the Tribunal is whether Wawanesa should have approved the treatment plan at the time. If Wawanesa should have approved the plan as of December 4, 2019, then the claimant likely would have incurred the cost of the benefit shortly after that time and within the five-year period.


Vice-Chair, D. Flude’s reasoning was followed in Picken v. Aviva Insurance Company, 2023 ONLAT 21-001978. In Picken, decided in October of 2023, the Tribunal found that two treatment plans submitted and denied by Aviva before the 5-year deadline were reasonable and necessary and payable by Aviva despite the fact that the costs of the treatment were not incurred prior to the 5-year deadline (October of 2022). The Adjudicator further recognized the practical reality that most claimants are impecunious and should not have to incur the high cost of treatment plans without knowing whether or not the LAT will subsequently find them to be reasonable and necessary and thus recoverable from the AB insurer. Such a result would be inconsistent with the consumer protective nature of the Statutory Accident Benefits Schedule.


Similarly, in Tyner v. Certas Home and Auto Insurance Company, a Reconsideration decision, the Reconsideration adjudicator found that the Tribunal erred in not considering the Han decision.


As such, these decisions have breathed flexibility into the 5-year deadline. Treatment plans approved prior to the five-year deadline will be fully payable even if not incurred prior to the five-year deadline. Also, treatment plans denied prior to the 5-year deadline and not incurred before the five-year deadline will still be payable if the Tribunal subsequently finds them to be reasonable and necessary. This approach prevents insurers from tactically denying plans submitted near the five-year mark without regard to the reasonableness and necessity of such a plan. This provides claimants with an opportunity to partake in much needed treatment even as the five-year deadline approaches. These decisions should be applauded as should the Adjudicators' awareness of the practical realities underpinning Accident Benefits claims.



Individuals should promptly retain legal counsel after a motor vehicle accident to ensure they receive all accident benefits to which they are entitled. The personal injury lawyers at Hillier & Hillier specialize in Accident Benefits and will ensure that you receive all benefits to which you are entitled.  Contact Hillier & Hillier at 905 453 8636 to schedule a free consultation by zoom videoconferencing, in person, or by telephone.



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